Citation Nr: 21075928 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-19 638 DATE: December 21, 2021 ORDER Entitlement to service connection for urticaria (originally claimed as a skin condition, to include hives) is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a urinary disorder is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's urticaria is related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for urticaria have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1967 to June 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In July 2018 and December 2020, the Board remanded these matters to the RO for further development. 1. Entitlement to service connection for urticaria The Veteran contends that his skin disorder is related to service, to include in-service herbicide agent exposure, as he has intermittently experienced the same rash on his body since his service in Vietnam. See November 2012 Statement in Support of Claim. He seeks service connection on this basis. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Any veteran who served in the Republic of Vietnam during the period beginning January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). As the Veteran served in Vietnam during this time, exposure to herbicide agents is presumed. Moreover, certain disabilities that are presumed to be related to herbicide agent exposure are listed at 38 C.F.R. § 3.309(e), which includes chloracne, a skin disability. In this case, however, the Veteran has been diagnosed with urticaria, which is not presumed to be related to herbicide exposure. Nevertheless, the Veteran is not precluded from establishing service connection for this disability. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Board finds that the Veteran has a current disability of urticaria for VA compensation purposes. Specifically, the Veteran was diagnosed with urticaria at the March 2012 and October 2019 VA skin disorders examinations. The Board notes that the fact that urticaria was not diagnosed during the most recent August 2021 VA examination is not fatal to the Veteran's claim. Indeed, the United States Court of Appeals for Veterans Claims (Court) has recognized that some disabilities, like rashes, wax and wane due to their inherent nature. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, the first element of service connection is met. Next, the Board finds that the second requirement for service connection, which is evidence of an in-service incurrence, injury, or disease, has been met. The Veteran has testified that while he was in Vietnam, he got a rash/hives on his body, received treatment for his rash during service, and has continued to intermittently experience the same symptoms since service. See April 2018 Board Hearing Transcript, p. 11. The Veteran's service treatment records (STRs) also show that he experienced a rash during service. Specifically, a June 1969 STR reflects that the Veteran had a rash on his left leg and was given Benadryl while another STR reflects that the Veteran had a rash on his legs that may have sounded like neurodermatitis. A September 1969 STR also shows that the Veteran had a swollen right hand and early cellulitis. He was given penicillin as treatment for this condition. While the Veteran's STRs do not document a specific diagnosis of urticaria, his reports of in-service skin diagnosis symptoms, such as a experiencing a rash, are competent and credible as his statements are consistent with the evidence of record. The Board further finds that during the Veteran's combat service in Vietnam, it was not always possible for treatment to be recorded in the STRs. Indeed, given that the Veteran served in action, under 38 U.S.C. § 1154(b) the adjudicative evidentiary requirements for determining what happened in-service are relaxed for combat veterans. Therefore, the second element of service connection is also met. Finally, the Board finds that the evidence is in equipoise as to whether the Veteran's in-service skin symptoms of hives/rash have episodically recurred since service and are attributable to his current urticaria diagnosis. In this regard, the Veteran has competently and consistently reported experiencing a recurrent rash/hives, to include on his thighs and legs, since service and during combat in Vietnam. See e.g., March 2012 VA examination (reflecting the Veteran's report of developing hives in Vietnam and that they recurred when he got back); November 2012 Statement in Support of Claim (reporting that he was first treated for hives/urticaria in service and saw civilian physicians for this condition thereafter); April 2018 Board hearing transcript (testifying to experiencing a rash in Vietnam that continues to this day). The Board notes that skin rash symptomatology and post-service management and symptoms is within lay observation. Here, the Veteran is competent to report that he experienced the onset of such symptoms in service and that such symptoms were regular and recuring since service as such symptoms are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board finds that the Veteran's contentions concerning the onset and continuity of his symptoms are credible because his assertions are internally consistent and consistent with his reported medical history to health care providers. In this regard, although there is an absence of medical records for many years following the Veteran's separation from service, the available post-service medical records indicate that he continuously reported a recurrent skin disorder since service. For instance, a January 2011 VA treatment record, prior to when the Veteran filed his service connection claim, indicates that the Veteran gets hives during the winter all over his body since service. The Board finds that the fact that the Veteran reported a skin disorder since service prior to his compensation claim on appeal and to a provider for treatment purposes lends credibly to his assertions that his current skin disability is related to service. An August 2011 VA treatment record also reflects that the Veteran had recurrent urticaria while the February 2012 VA Agent Orange/Ionizing Clinic Note reflects the Veteran's reports of urticaria related to his service in Vietnam. As such, the Board considers the Veteran's lay statements concerning onset and symptomatology reasonably uncontradicted and highly probative for the purposes of this analysis. The Board acknowledges the negative VA opinions of record in March 2012, October 2019, and August 2021. However, these opinions are afforded no probative value as they are all inadequate. Specifically, the March 2012 VA examiner opined that she was unable to resolve whether the Veteran's disorder was related to service without resort to speculation because there is no description of the Veteran's rash on his legs in service and because periodic skin examinations were normal. The October 2019 VA examiner also provided a negative nexus opinion explaining that the Veteran's urticaria is not related to herbicide agent exposure because it is not a presumptive condition associated with such exposure and because the Veteran's STRs do not actually reflect a notation of urticaria or hives. Finally, the August 2021 VA examiner based her negative nexus opinions on the basis that the Veteran does not have a current disability. First, and as discussed above, as the Veteran has a current skin disability for VA compensation purposes, the August 2021 VA opinion is based on an inaccurate factual premise and is afforded no probative weight. The Board also finds that the March 2012 and October 2019 VA opinions are inadequate because they do not reflect appropriate consideration of the Veteran's competent and credible account of an in-service onset and recurrent symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that the VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, neither opinion addresses whether the Veteran's ureterica is related to his conceded herbicide exposure on a direct basis. Essentially, the Board finds there are no adequate medical nexus opinions of record but also finds that this is not fatal to the Veteran's claim as the Veteran has competently and credibly stated that the manifestations of his current skin disorder have been ongoing since service. Additionally, these reports are consistent with the available post-service medical records and his STRs. In consideration of the foregoing, the evidence is in equipoise as to whether his skin disorder of urticaria is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran's disability is related to his active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for urticaria is granted. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder and for a urinary disorder Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, the Board finds that the last VA examinations and opinions of record, in August 2021, are inadequate to decide the claims at issue. Significantly, although review of the medical evidence of record reflects that the Veteran has been diagnosed with bronchitis, asthma, chronic obstructive pulmonary disease (COPD), urinary tract problems/prostatitis, and a voiding dysfunction, the August 2021 VA examiner found that the Veteran had no diagnosed respiratory or urinary disorders. The VA examiner did not provide any explanation for these findings or otherwise explain why her findings contradicted the other treatment records and examinations related to the Veteran's claims. Moreover, she based her negative nexus opinions on the fact that the Veteran had no diagnosed disabilities and failed to consider the Veteran's reports of continuity of symptomatology as requested to do so in the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that a remand is necessary to afford the Veteran adequate opinions to determine that nature and origin of his claimed disorders. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated August 2021. 2. Provide the Veteran another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims. Specifically, inform the Veteran that Mimbres Medical Center indicated that he would have to submit a new request with the correct facility name and address in order to obtain his private treatment records from this provider and that the provider provided a website link that appears to contain this information to request the records: https://www.mimbresmemorial.com/mimbres-memorial-hospital/contactus. See June 2021 Report of General Information. After securing the necessary releases, attempt to obtain and associate any identified treatment records with the claims file. 3. Then, arrange for an addendum VA opinion with an appropriate examiner, other than the August 2021 VA examiner, to determine the nature and origin of the Veteran's respiratory disorder. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for an in-person examination is left to the discretion of the VA examiner. The examiner should respond to the following: (a) Identify all diagnoses associated with the Veteran's respiratory disorder claim during the appeal period (i.e., since 2011) even if such have resolved during the appeal period or are currently asymptomatic, to include bronchitis, asthma, and COPD. (b) For each diagnosed disability, to specifically include bronchitis, asthma, and COPD, is it at least as likely as not (50 percent probability or greater) that such (1) had an onset in service; or (2) is otherwise related to service, to include the Veteran's conceded exposure to herbicide agents in Vietnam and/or his report of an in-service mortar attack that caused him to breath dust into his lungs and experience coughing and breathing problems. The examiner is advised that whether a disability is a presumptive condition under 38 C.F.R. § 3.309(e) is irrelevant for purposes of this question and that the failure to meet the criteria for presumption does not preclude a veteran from establishing entitlement based upon herbicide exposure on a direct basis. In providing the above opinion, the VA examiner MUST ADDRESS the Veteran's reports of an onset of bronchitis/respiratory disorder in service and that he has continuously experienced such since. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (c) For each diagnosed disability, to specifically include bronchitis, asthma, and COPD, is it at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by the Veteran's service-connected disabilities, including any associated medications. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there is a medically ascertainable increase in disability regardless of permanence. (d) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, including associated medications, caused or aggravated the Veteran's obesity? (e) If so, (1) is the Veteran's obesity a substantial factor in causing or aggravating any of his identified respiratory disorders; and (2) would the identified respiratory disorders not have occurred or worsened but for the obesity caused by his service-connected disabilities? A complete rationale for all opinions offered should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. 4. Then, arrange for an addendum VA opinion with an appropriate examiner, other than the August 2021 VA examiner, to determine the nature and origin of the Veteran's claimed urinary disorder. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for an in-person examination is left to the discretion of the VA examiner. The examiner should respond to the following: (a) Identify all diagnoses associated with the Veteran's urinary disorder during the appeal period (i.e., since 2011) even if such have resolved during the appeal period or are currently asymptomatic, to include a voiding dysfunction and urinary tract infections/prostatitis/benign prostatic hypertrophy. (b) For each diagnosed disability, to specifically include a voiding dysfunction and urinary tract infections/prostatitis/benign prostatic hypertrophy, is it at least as likely as not (50 percent probability or greater) that such (1) had an onset in service; or (2) is otherwise related to service, to include the Veteran's conceded exposure to herbicide agents in Vietnam. The examiner is advised that whether a disability is a presumptive condition under 38 C.F.R. § 3.309(e) is irrelevant for purposes of this question and that the failure to meet the criteria for presumption does not preclude a veteran from establishing entitlement based upon herbicide exposure on a direct basis. In providing the above opinion, the VA examiner MUST ADDRESS any of the Veteran's reports concerning an onset of symptoms in and since service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (c) For each diagnosed disability, to specifically include a voiding dysfunction and urinary tract infections/prostatitis/benign prostatic hypertrophy, is it at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by the Veteran's service-connected disabilities, including any associated medications. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there is a medically ascertainable increase in disability regardless of permanence. (d) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, including associated medications, caused or aggravated the Veteran's obesity? (e) If so, (1) is the Veteran's obesity a substantial factor in causing or aggravating any of his identified urinary disorders; and (2) would the identified disorders not have occurred or worsened but for the obesity caused by his service-connected disabilities? A complete rationale for all opinions offered should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.